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MEMBER DIARY

Justice Alito Stresses Federalism As Refuge from Usurpatory Government

With the Supreme Court and the future of constitutional government in doubt, it’s always reassuring to hear from the voices who espouse those views. I’m an ardent optimist. I have faith that the electorate will correct their decisions made on Nov. 6, and constrain this president’s pernicious agenda of implementing a hyper-regulatory progressive state. The Federalist Society’s 30th Anniversary Gala last Thursday night featured Supreme Court Justice Samuel Alito, who detailed how the legal opinions of those on the left threaten America’s constitutional bedrock: federalism.

To put it simplistically, the federal government is supreme in its sphere, as is the state government in their defined area. There is overlap – and confusion. However, Alito gave a robust defense of the doctrine. While it’s seen better days, federalism in Alito’s view, promotes energetic and productive competition, protects liberty, and encourages experimentation. He also reiterated that you do not have to buy the various treatises on constitutional law that run over a thousand pages – and cost a considerable amount of money – to understand that congressional power is limited. You just have to read the plain text of the U.S. Constitution to understand that point.

He then went on to detail various cases that have threatened this principle of federalism. From the government being able to attach GPS monitors surreptitiously to your vehicles and calling it a search under the Fourth Amendment to facing the regulatory nightmare of having wetlands being designated in one’s backyard, the fight to keep the Madisonian experiment in limited government, and the principles of federalism un-imbrued continues with fragility.

We have four liberals, four conservatives, with Justice Alito included, and moderate Justice Kennedy on the bench, which isn’t a firm legal defense of the principles conservatives wish to see unblemished. And more fights will come. One fight in particular that was highly salient – which was described more in depth by Justice Alito, concerned Hosanna-Tabor v. EEOC.

In this case, Cheryl Perich was hired by the Hosanna-Tabor Lutheran Church and School, taught some lessons, contracted narcolepsy, took a leave of absence, and was subsequently replaced. She sued under the American with Disabilities Act, however, the ministerial exception gave more latitude to religious institutions in terms of hiring and firing processes. The Court ruled unanimously that such an exception applied here and, therefore, discrimination lawsuits brought against religious institutions aren’t valid.

Well, The New York Times, to no one’s surprise, didn’t take too kindly to the decision. But, the argument for Perich and The New York Times is disturbing. Should courts be allowed to review cases, and make decisions based on legal and religious doctrines? Is it up to a judge and jury to decide termination of employment? If accepted, government would have been able to go deep into the dynamics of religious institutions, and the doctrines that guide them. That’s gross overreach.For jurists to decide cases based solely on church doctrine, if this argument were accepted by the Court, and not law is insane. As Justice Alito said at the dinner, it’s a “chilling” foray into this plausible episode of government intrusion.

This nation proudly and robustly defends the right to free speech enshrined in our First Amendment. However, this case, and Citizens United, shows how some people on the left will try to alter the Constitution to fit their model on how they feel government should operate – or feel whole again. Citizens United, the more controversial of the two cases, was boiled down to the government making the case the speech articulated or disseminated by the privileged few is protected, but isn’t for other parties in the country. That’s perverse, and it doesn’t stop there.

Justice Alito concluded with a warning about the alternate vision we’re fighting against in the judiciary. It’s a vision where federalism offers no refuge. It’s an insufferable progressive state that stomps on religious institutions and freedoms. It’s a government that can willingly seize private property. Justice Alito vociferously made the case that the U.S. Constitution wasn’t meant to be malleable with a dependent, entitled society. It was designed for the citizens operating within a socioeconomic fabric that stressed freedom and independence. This document embeds certain rights, so that they can’t be easily removed from the political landscape. Therefore, as Justice Alito alluded to, it’s integral to the survival of our freedom, and our commitment to be an open and prosperous society.